Bantekas & Papastavridis: International Law Concentrate 2e

Essay question and answer guidance

Critically assess the legality of humanitarian intervention.

Answer 1

Unilateral military intervention may take the form of humanitarian intervention, which involves the use of military force by one or more States against another State that is violating the human rights of its people on a gross and systematic scale. Examples include the invasion of East Pakistan (now Bangladesh) by India in 1971 and that of NATO against Yugoslavia in 1999 in order to safeguard the Kosovar minority. Is it in consistency with article 2 para. 4 of the UN Charter?

Article 2 para 4 UN Charter prohibits the threat or the use of force and allows for two exceptions: the right of individual or collective self-defence and the collective security mechanism under Chapter VII of the UN Charter, which involves authorizations to use force by the Security Council.

Humanitarian intervention is not act of self-defence as such, since there is no armed attack from the State, which perpetrates the violations of human rights law. In addition, since there is no Security Council Resolution that mandates such intervention, it cannot be classified as a measure of collective security. Hence, humanitarian intervention seems to be illegal under international law.

There is however a new concept in the international arena: the Responsibility to Protect doctrine (R2P). This has been formulated in the 2005 World Summit and essentially means that when States, which are primary responsible to protect their population fail to do so, the international community should intervene. However, it is accepted this collective action should take place though the Security Council. It is another issue when the Security Council is deadlocked whether States can take unilateral measures; the answer is in negative.

.........................................................BAD POINTS

This is not a bad answer at all, but it has very few negative elements. For one thing, its analysis of international practice, e.g. the Kosovo intervention is poorly analysed. Reference could be made to the Legality of the Use of Force cases before the ICJ, in which Belgium advocated the doctrine of humanitarian intervention. Also, the reference to article 2 para 4 was not discussed at all and there was no consideration of whether humanitarian intervention can form a new customary exception to article 2 para 4 of the UN Charter. This would alow room for the discussion of formation of custom: practice and opinio juris.

Also, another gap has been the lack of reference to countermeasures as justification of humanitarian intervention. The latter can be viewed as collective forcible countermeasures in response to a a breach of a peremptory norm of international law, that is, the fundamental human rights. The legality of course of such countermeasures would be debatable.

Reference, lastly, could be made to the ongoing debate on Syria.Overall, all of the relevant issues could have been developed with more detail.

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GOOD POINTS

The answer examines very satisfactorily the basic question. It is well structured and shows the knowledge of the law on the part of the author. It also refers to the relevant State practice. Moreover, the author does take an unequivocal position against the legality of humanitarian intervention, which is the prevalent view in international doctrine.

Answer 2

The doctrine of humanitarian intervention is an ambivalent exception to the principle of the prohibition on the use of force. It concerns the armed intervention of States to the territory of another State in order to avert a humanitarian catastrophe. We will firstly see the legal arguments in favour of the permissibility of such intervention and then we will examine the arguments against is legality.

Article 2 para 4 prohibits a use of force against ‘the territorial integrity or political independence of another State or in a manner inconsistent with the purposes of the UN. Arguably, a humanitarian intervention that would not be against the territorial integrity or political independence of another State and would further the purposes of the UN, amongst which is the safeguard of human rights, should be considered beyond the scope of article 2 para 4 and thus not prohibited under international law.

In addition, there is enough State practice and opinio juris as expressed by States in various fora, e.g. Belgium or the UK before the ICJ, which leads to the formation of a customary norm of international law to this end.

Humanitarian intervention can be conceived as lawful countermeasures in response to a breach of an international obligation by the culprit State. Under article 48 of the 2001 ILC Articles on State Responsibility, all States have a legal interest for the cessation of a breach of obligations erga omnes, as the violation of human rights. They are all thus injured States and can take proportionate countermeasures against the violating State in accordance with the law of international responsibility.

Arguments against the legality of humanitarian intervention would flow from the interpretation of article 2 para 4 of the UN Charter, which prohibits any use of force as well as from the limited support given to this argument by the international case-law and international theory.

Overall, the question of the legality of humanitarian intervention is an ambivalent one and there are no clear-cut answers. Nevertheless, there is no doubt about the political necessity or the morality of the humanitarian intervention. It is possible to take the view that there are cases where such action should occur (as a matter of morality). And this must be taken into consideration when discussing cases such as Syria.

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GOOD POINTS

This is a good response. It is rather elaborate and I like the structure of setting forth first the arguments in favour and then the arguments against. Moreover, there are no superfluous issues and each paragraph clearly responds to the question posed. I like also the reference to case-law, the jurisprudence of the World Court and the linkage with the ongoing debate regarding Syria.

BAD POINTSThere are few bad points, more in substance and less in structure. First, there is insufficient mention to the arguments against the legality of the humanitarian intervention. Also, the answer is not entirely correct as far as the injured State and countermeasures are concerned. Third States in such cases do not qualify as ‘injured States’ and the taking of countermeasures can never include the use of armed force and a breach of a jus cogens norm. The analysis of customary law is very poor. Finally, the morality argument is good, but the question is on the ‘legality’ of humanitarian intervention and not on its ‘legitimacy’ or ‘morality’.

Suggested Answer

The doctrine of humanitarian intervention has aroused considerable controversy in international legal discourse. It involves the use of military force by one or more States against another State that is violating the human rights of its people on a gross and systematic scale. Examples include the invasion of East Pakistan (now Bangladesh) by India in 1971 and that of NATO against Yugoslavia in 1999 in order to safeguard the Kosovar minority. Is it in consistency with article 2 para. 4 of the UN Charter?

Article 2 para 4 UN Charter prohibits the threat or the use of force and allows for two exceptions: the right of individual or collective self-defence and the collective security mechanism under Chapter VII of the UN Charter, which involves authorizations to use force by the Security Council.

Humanitarian intervention is not act of self-defence as such, since there is no armed attack from the State, which perpetrates the violations of human rights law. In addition, since there is no Security Council Resolution that mandates such intervention, it cannot be classified as a measure of collective security. Hence, humanitarian intervention seems to be illegal under international law.

Nevertheless, many arguments, cogent or not, have been put forward in support of the doctrine of humanitarian intervention: Firstly, the correct interpretation of article 2 para 4 of the UN Charter: arguably, a humanitarian intervention that would not be against the territorial integrity or political independence of another State and would further the purposes of the UN, amongst which is the safeguard of human rights, should be considered beyond the scope of article 2 para 4 and thus not prohibited under international law. The counter-argument would be that such interpretation is not the interpretation hitherto given to article 2 para 4. It is inconsistent with subsequent practice; and also with the drafting history.

Secondly, there has been some State practice (Bangladesh, Kosovo), which, if coupled with the necessary opinio juris, can give rise to the emergence of a new exception to the rule of article 2 para. 4. Such opinio juris can be found in the Responsibility to Protect doctrine (R2P). This has been formulated in the 2005 World Summit and essentially means that when States, which are primary responsible to protect their population fail to do so, the international community should intervene.

However, in the Word Summit, it was accepted that this collective action should take place though the Security Council. And the formation of a customary law against a peremptory norm of international law, such as the prohibition of the use of force should not be lightly presumed.

Finally, it may be argued that a limited humanitarian intervention can be conceived as lawful countermeasures in response to a breach of an international obligation by the culprit State. Under article 48 of the 2001 ILC Articles on State Responsibility, all States have a legal interest for the cessation of a breach of obligations erga omnes, as the violation of human rights. They are all thus injured States and can take proportionate countermeasures against the violating State in accordance with the law of international responsibility.

This argument runs counter to the law of international responsibility, which does not permit forcible countermeasures, not even collective ones, as well as to the content of article 48 of ILC Articles.

Overall, it must be concluded that humanitarian intervention is unlawful. Nevertheless, there might be cases that such intervention would be necessary to avert a humanitarian catastrophe (see Kosovo or possibly Syria). It is possible to take the view that the law should prohibit such action but that there are cases where such action should occur (as a matter of morality) although the prohibition remains in place.